William H. Jordan*
At the 1997 National Lawyers Convention, the Criminal Law and
Procedure Practice Group hosted a lively debate on the problems
and benefits associated with the substantial growth in the federalization
of criminal law. The diverse panel consisted of former Attorney
General and current Federalist Society Board of Trustees member
Edwin Meese, the Honorable D. Brooks Smith of the United States
District Court for the Western District of Pennsylvania, Steptoe
& Johnson attorney Richard K. Willard, Professor Tom Stacy of
the University of Kansas School of Law, and Duke Law School Professor
Sara Sun Beale.
Judge Smith opened the discussion by arguing that federal law should
not usurp the traditional role of the states in prosecuting local
crimes, unless it can be conclusively shown that the crime implicates
a substantial federal interest or creates a strong presumption that
the prosecution may be biased. Judge Smith opined that federal prosecutors
should become involved in crimes involving local corruption among
government officials and acts of racial oppression, but it is the
"height of arrogance" for the federal government to believe
that it has anything to teach the states in matters such as sexual
assault. Clearly, in areas such as sexual assault and other common
or peculiarly local crimes, states have superior expertise in investigation
and prosecution. A federal prosecutor, therefore, should exercise
discretion in determining whether to bring federal criminal charges
against a defendant or refer a case to a local district attorney.
Richard Willard noted that there is a disconnect between public
sentiment and public policy. Citing a recent opinion poll, Willard
stated that eighty-five percent of Americans believe that courts
are not harsh enough on crime and that, by 1992, seventy percent
of Americans believed that the Bush administration was not doing
enough about crime at the local level. Although Willard asserted
that many federal criminal laws are unwise and merely symbolic attempts
by Congress to appear concerned about crime at a local level, he
believes that the "genie of states' rights" cannot be
put back into the bottle. In other words, individuals and courts
cannot realistically say that Congress can regulate the economy,
but not crime. Therefore, the real question is not whether federal
law should sanction crimes traditionally covered by state law, but
how we can best allocate resources and expenditures to deal with
the crime itself, on both a federal and state level.resources
Attorney General Meese argued that a better balance between federal
and local law enforcement is needed. He noted that the Constitution
places the responsibility for public safety on the states and that
the principal reason for the decline in crime in recent years is
a result of better enforcement by local police of laws already on
the books, and not a result of the crime bills passed almost each
year by Congress. Meese urged officials to create a distinction
between cooperation among federal and state authorities, and the
complete usurpation of local police power by federal law enforcement
authorities. It is appropriate for the federal government to supply
enforcement functions where the states may lack resources or jurisdiction,
but many current attempts to federalize criminal law seem to be
little more than attempts by Congress to assuage public opinion.
Meese further chided the Supreme Court for its failure over the
years to safeguard states' rights against an ever-growing federal
government.
Professor Tom Stacy argued that there has been little growth in
the federal government's share in the enforcement of crime over
time. Stacy cited to data showing that there has not been an increase
in the overall burden on judges, because criminal filings, on a
per-judge basis, have actually decreased. Moreover, he stated that
the increased mobility of individuals and interstate nature of crimes
justifies a greater role for the federal government in prosecuting
criminal violations. Stacy argued that the Constitution, when viewed
in the modern context of Congress' commerce clause authority, is
no longer compatible with an idea of limited national power. Accordingly,
Stacy's prescription is not the decreased federalization of criminal
law, but a better allocation of government resources to areas where
federal enforcement is more efficient, such as computer crimes or
in under-invested poor areas of a state.
Professor Beale stated that there are both too many and too few
federal prosecutions. She noted that forty-eight percent of judges'
cases are criminal, and that more than a third of the district courts
are devoting at least fifty percent of their calendars to trial
time. Moreover, over the last twenty years, there has been a one-hundred
percent increase in the number of prosecutors, but only a seventeen
percent increase in the number of federal judges. The number of
very long trials has increased, along with the complexity and variations
of the criminal charges. Professor Beale opined that there have
also been too few prosecutions, in that crime is still rampant and
the number of state prisons and inmates has grown substantially.
The panelists all agreed that there has been an increase in the
federalization of crimes, but differed on the problems created and
the prescriptions to remedy any perceived ills. Panelists such as
Judge Smith and Professor Stacy believed that the expansive reading
of the Commerce Clause essentially permits Congress to enact almost
any prohibition it desires. General Meese and Professor Beale, on
the other hand, believed that the promise of the Lopez decision,
which declared the Gun-Free School Zones Act unconstitutional as
violative of Congress power under the Commerce Clause, has
not yet been fulfilled and may very well be a harbinger for the
future of federal criminal laws that tread too far into the states
traditional area of authority.
*William H. Jordan is an associate with the law firm of Alston
& Bird, LLP.
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